Contact
Sarah Murphy
11 November 2016
The Chair
Education and Science Committee
Parliament Buildings
Wellington
[email protected]
Dear Chair
Education (Update) Amendment Bill (2016)
Thank you for the opportunity to make a submission on the Education (Update) Amendment Bill.
This submission is made on behalf of the Office of the Ombudsman.
OIA and Ombudsmen Act
We consider it important to clarify that COOLs are subject to both the Ombudsmen Act and the
Official Information Act (OIA), for the purposes of transparency and accountability. This accords
with the former Chief Ombudsman’s view regarding the need for partnership schools to be
subject to both Acts.
It is an important constitutional safeguard that state sector agencies are included under the
Ombudsmen Act and the Official Information Act. Inclusion of COOLs under the OIA would enable
the public to access information about their operations and help to ensure appropriate standards
of educational and other practices are maintained. Rendering COOLs subject to the Ombudsmen
Act would ensure that parents and pupils had access to an independent complaints mechanism in
the event that they are adversely affected by actions or omissions of a COOL.
Schools play a pivotal societal function in educating the next generation, and should therefore be
subject to the full suite of legislative accountability mechanisms, to ensure they operate
effectively, accountably and transparently.
Communities of Online Learning
While we agree that on-line learning can make an important contribution to education, we are
concerned about the breadth of the proposed Communities of On-Line Learning (COOL) scheme,
and in particular the apparently unrestricted ability of any student to be enrol in a COOL (clause
20 refers).
We consider that COOLs should supplement rather than replace physical schools, and should only
be available as a full time education choice where there is a proven need for a pupil not to attend
a physical school, such as ill health or physical remoteness.
We are concerned that full time attendance at a COOL rather than a school could have significant
adverse social impacts on the attendees. In addition to the potentially isolating effect on the
Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata
learner, the likely absence of social interaction of the attendees could have downstream health
implications as well as fiscal and societal costs. We also note that full time enrolment in an on line
learning course, as opposed to a physical school, appears to be in tension with objectives in
Clause 1A(3)(b)(ii) of the Bill of ‘promoting the development, in each child and young person of the
following abilities and attributes: good social skills and the ability to form good relationships’ as
well as clause 1A(3)(b)(ii) of ‘participation in community life ...’.
While we consider that there is a place for on-line learning for some disabled persons, we are
concerned that COOLs could, in practice, result in the exclusion of disabled persons from the
school community. In addition to the above requirement that persons who attend COOLs full time
have a demonstrated need for on line learning, we would support the inclusion of additional
statutory safeguards to ensure that that disabled persons maintain, in practice, the right to attend
physical schools. This would be consistent with objective 1A(3)(c) of the Education (Update)
Amendment Bill of ‘instil[ing] in each child and young person an appreciation of the importance of
the inclusion within society of different groups and persons with different personal
characteristics’.
These suggested amendments would also help to ensure that New Zealand meets its obligations
under Article 24(1) of the United Nations Convention on the Rights of Persons with Disabilities.
Article 24(1) requires state parties to ’ensure an inclusive education system at all levels and life
long learning directed to ... the development by persons with disabilities of their personality,
talents, and creativity, as well as their mental and physical abilities, to their fullest potential.’
Article 24(2) obliges State Parties to ensure that persons with disabilities to ‘learn life and social
development skills to facilitate their full and equal participation in education and as members of
the community’.
Absolute discretion
We are concerned about the multiple amendments that create powers of ‘absolute discretion’ on
the part of the Minister. These are in new section 35T (accreditation of communities of online
learning), clause 100 (power to establish schools), clause 106 (power to change the class of
schools), clause 107 (power to close schools), new section 156AA (requirement for establishing a
designated character school), and clause 110 (power to merge schools).
The introduction of absolute discretion decision making powers appear to be designed to avoid
judicial review.
We acknowledge the goals of the government in seeking certainty in decision making. However
the need for certainty needs to be balanced against the requirement for administrative fairness in
executive decision making, particularly given the far reaching impact that Ministerial decisions on
schooling have on the community (Christchurch school closures being a salient example).
‘Absolute discretion’ in decision making is constitutionally problematic, as the very limited ability
to challenge the exercise of the discretion under judicial review can result in arbitrary and
unaccountable decision making. This is of particular concern given that Ministers are not subject
to oversight by the Ombudsmen under the Ombudsmen Act.
We recommend that all references to absolute discretion are removed from the Bill.
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Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata
Other matters
We consider that clause 78LC(3)(b) should be amended to require boards that are subject to
performance notices to provide a report at the conclusion of the performance notice. Currently
reports are optional.
We consider that the word ‘procedural’ should be inserted before ‘error’ in clause 98C(b) to
ensure that substantive errors in board appointments can be remedied.
It is not clear under the Act who would supervise COOL students. We suggest that consideration
be given to a statutory requirement that COOL attendees are supervised by an adult.
Clause 442 as it is currently drafted may be read as allowing discrimination in enrolment decisions
on grounds other than religion, race, or socio economic background. We consider that it is
important to add disability to the specified grounds. We also suggest that consideration be given
to including the other relevant prohibited grounds of discrimination under the Human Rights Act
in the clause.
We hope that these comments are of assistance to the Committee.
We would like to address the Committee on this submission. To make the relevant arrangements
in this respect, Principal Advisor Sarah Murphy can be contacted at (09) 300 4200 or
[email protected].
Yours sincerely
Emma Leach
Assistant Ombudsman
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